New Bedford Cotton Waste Co. v. Eugen C. Andres Co.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtWAIT
Citation154 N.E. 263,258 Mass. 13
Decision Date03 December 1926
PartiesNEW BEDFORD COTTON WASTE CO. v. EUGEN C. ANDRES CO.

258 Mass. 13
154 N.E. 263

NEW BEDFORD COTTON WASTE CO.
v.
EUGEN C. ANDRES CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1926.


Exceptions from Superior Court, Suffolk County; F. Lawton, Judge.

Action of contract by the New Bedford Cotton Waste Company against the Eugen C. Andres Company to recover on contract for sale of cotton waste. Judgment for plaintiff, and defendant excepts. Exceptions overruled.


[258 Mass. 15]W. B. Leach, Jr., of Brookline, for plaintiff.

W. H. Garland and A. Garceau, both of Boston, for defendant.


WAIT, J.

The first count of the declaration alleges breach of a written contract for purchase and sale of merchandise through failure of the buyer to give shipping instructions called for by the contract. It sets out facts showing the extent of the damage. The second count is upon an account annexed, the items of which are: (1) Indebtedness on December 1, 1921, for the contract price of goods then deliverable under the contract; (2) interest on that amount to March 30, 1922; (3) money paid for storage charges until that date; and (4) credit for the amount received by the plaintiff from a sale of the goods made on March 30, 1922. The counts are different statements of the same claim.

[1] The bill of exceptions discloses that the only request or motion presented by the defendant at the trial before a judge sitting without a jury was that judgment be ordered for the defendant. No attention was called to the fact that because the contract, by its terms, allowed the buyer a credit of thirty days which had not then expired, nothing was due on December 1, 1921. No prayers setting out the contentions of law made by the defendant were addressed to the judge during the hearing. In this state of affairs the only exception open to the defendant is, whether the judge was right in refusing, as he did, to order judgment for the defendant. Lyon v. Prouty, 154 Mass. 488, 28 N. E. 908. It cannot gain added grounds of exception after receiving notice of the decision, by claiming then, for the first time, exceptions to what it calls rulings ‘in substance,’ implied [258 Mass. 16]from the ‘findings of fact and rulings' which the judge filed with his order for judgment for the plaintiff. Richards v. Appley, 187 Mass. 521, 73 N. E. 555;Thwing v. Clifford, 136 Mass. 482;McCoy v. Jordan, 184 Mass. 575, 582, 69 N. E. 358;Jones v. Newton Street Railway, 186 Mass. 113, 71 N. E. 114;Quimby v. Joy, 196 Mass. 584, 82 N. E. 1084.

[2] In a trial...

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22 practice notes
  • Commonwealth v. Hull
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Enero 1937
    ...equivalent to a ruling that the evidence warranted a finding against the defendant. New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 16, 154 N.E. 263;Ashapa v. Reed, 280 Mass. 514, 516, 182 N.E. 859;Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 501, 189 N.E. 839;Moshe......
  • Commonwealth v. Hull
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 2 Enero 1937
    ...equivalent to a ruling that the evidence warranted a finding against the defendant. New Bedford Cotton Waste Co. v. Eugen C. Andres Co. 258 Mass. 13 , 16. Ashapa v. Reed, 280 Mass. 514 , 516. Menici v. Orton Crane & Shovel Co. 285 Mass. 499 , 501. Mosher v. Hayes, 288 Mass. 58 . Woodman v. ......
  • Blankenburg v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Julio 1930
    ...232 Mass. 412, 419, 122 N. E. 295;Royle v. Worcester Buick Co., 243 Mass. 143, 137 N. E. 531;New Bedford Cotton Waste Co. v. Andres Co., 258 Mass. 13, 17, 154 N. E. 263. And it must be presumed that all these findings were made beyond a reasonable doubt in the mind of the trial judge. Root ......
  • Leshefsky v. American Employers' Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Enero 1936
    ...cited. See, also, Fisher v. Drew, 247 Mass. 178, 181, 141 N.E. 875, 30 A.L.R. 798;New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 16, 154 N.E. 263. This requirement rests upon the principle that no exception lies to the finding of a judge on a question of fact (Ames v. Mc......
  • Request a trial to view additional results
14 cases
  • Commonwealth v. Hull
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Enero 1937
    ...equivalent to a ruling that the evidence warranted a finding against the defendant. New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 16, 154 N.E. 263;Ashapa v. Reed, 280 Mass. 514, 516, 182 N.E. 859;Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 501, 189 N.E. 839;Moshe......
  • Blankenburg v. Commonwealth
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Julio 1930
    ...232 Mass. 412, 419, 122 N. E. 295;Royle v. Worcester Buick Co., 243 Mass. 143, 137 N. E. 531;New Bedford Cotton Waste Co. v. Andres Co., 258 Mass. 13, 17, 154 N. E. 263. And it must be presumed that all these findings were made beyond a reasonable doubt in the mind of the trial judge. Root ......
  • Leshefsky v. American Employers' Ins. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 4 Enero 1936
    ...cited. See, also, Fisher v. Drew, 247 Mass. 178, 181, 141 N.E. 875, 30 A.L.R. 798;New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 16, 154 N.E. 263. This requirement rests upon the principle that no exception lies to the finding of a judge on a question of fact (Ames v. Mc......
  • Adams v. Adams
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 5 Abril 1941
    ...that there was no satisfactory proof that he ever got a loan without giving a note. New Bedford Cotton Waste Co. v. Eugen C. Andres Co., 258 Mass. 13, 154 N.E. 263,Gowell v. Twitchell, 306 Mass. 482, 28 N.E.2d 531. The report does not set forth categorically what the agreement was between t......
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